sent of the Senate in advance, and it was so asked by President Polk upon the ratification of the Treaty with Great Britain, in 1846, relative to Oregon. See 5 Marshall's Life of Washington, ch. 2, p. 223; Executive Journal, 11th Aug. 1790, pp. 60, 61; Rawle's Const. ch. 7, pp. 63, 64; Story's Const. § 1523; see Senate Journal and Debates of July, 1846, upon the Oregon Treaty.

"MAKE TREATIES."-[Fœdus.] An agreement between two or What is a more independent States. Brande. An agreement, league, or con- treaty? tract between two or more nations or sovereigns, formally signed by commissioners properly authorized, and solemnly ratified by the several sovereigns, or the supreme power of each State. Webster's Dic., TREATY; Burrill's Dic., TREATY. See Halleck's International Law, ch. 34, pp. 189, 844.

A treaty is, in its nature, a contract between two nations; not a legislative act. It does not generally effect, of itself, the object to be accomplished, especially so far as its operation infra-territorial, but is carried into execution by the sovereign power of the respective parties to the instrument. Foster & Elam v. Neilson, 2 Peters, 314.

In the United States a different principle is established. Our Constitution declares a treaty to be the law of the land. It is, consequently, to be regarded in courts of justice as equivalent to an act of the legislature, wherever it operates of itself without the aid of any legislative provision. But when the terms of the stipulation import a contract, when either of the parties engages to perform a particular act, the treaty addresses itself to the political, not the judicial department; and the legislature must execute the contract before it can become a rule for the court. Id.

The power extends to every kind of treaty. Story's Const. § 1508. But the power cannot be exercised to override other parts of the Constitution, and to destroy the fundamental principles of the government. Id.; Woodeson's Elem. of Jurisprudence, 31; 4 Jeff's Corresp. 2, 3, 498; Rawle's Const. 63-75. See the power discussed. Story's Const. § 1508, 1523; Ware v. Hylton, 3 Dall. 272–276.

199.

199.

240.

184.

179. HE SHALL NOMINATE."-The word as here used means Define to recommend, in writing to the Senate, the name of an appointee nominate? for confirmation. It is in this form the "advice of the Senate" is asked. This is the sole act of the President, and is voluntary. Marbury v. Madison, 1 Cr. 137; 1 Peter's Cond. 270; Story's Const. § 1548.

But the practice, when the Senate is not in session (and I think sometimes when it is), is, that the President fills vacancies, and the appointee qualifies and enters upon the duties of his office. In such cases, the NOMINATION is not confined to the PROVISIONAL appointee; but the President may and often does appoint another. See Stanbery on appointments to office. 14–19.

"AND BY AND WITH THE ADVICE AND CONSENT OF THE SENATE Appoint? SHALL APPOINT."-It will be observed that, as in the nomination, the duty is imperative-“ shall nominate,” “shall appoint.”

This power to fill vacancies is in the President, with the assent of the Senate, whilst that body is in session, and in the President alone when the Senate is not in session. There is no reason upon

recess?

189.

which the power to fill a vacancy can be limited by the state of things when it first occurred. On the contrary, the only inquiry is as to the state of things when it is filled..

What is the All admit that whenever there is a vacancy existing during the effect of an session, whether it first occurred in the recess or after the session appointment during the began, the power to fill requires the concurrent action of the President and Senate. It seems a necessary corollary to this, that where the vacancy exists in the recess, whether it first occurred in the recess or in the preceding session, the power to fill is in the President alone. If, during the recess, the power is not in the President, it is nowhere, and there is a time when for a season the President is required to see that the laws are executed, and yet denied every means provided for their execution. Stanbery. Nevertheless, it comes back to the point that the President can effect of the only "appoint," with the concurrence of the Senate; and all the appointments whether during the recess, or the session of the Senate are provisional only, and subject to the concurrence, in common parlance, "ratification," of that body.

What is the

confirma

tion?

What

powers can the Presi

dent confer?

What is the

commis

sion?

184.

Hence his power at all times to vacate offices and to fill vacancies. He can, by his own act, do every thing but give full title to his appointees, and invest them with the right to hold during the official term. That he cannot do without the consent of the Senate; but such is his power over officers, that, after the Senate has consented to his nomination, or in common parlance, has confirmed it, the nominee is not yet fully appointed, or even entitled to the office, for it still remains with the President to give him a commission or to refuse it, as he may deem best; and without the commission there is no appointment. This was held by the Supreme Court in Marbury v. Madison, 1 Cr. 137, 155, 156; and when to that decision we add the doctrine recognized by the same court in Ex parte Hennen, (13 Pet. 213), we see how fully the appointment and removal of officers is held to be a necessary incident of executive power. Stanbery, 18, 19.

The nomination and appointment are voluntary acts, and distinct from the commissioning. Marbury v. Madison, 1 Cr. 155-6. Even after confirmation, the President may, in his discretion, withhold a commission; and, until a commission has been signed, the appointment is not fully consummated. (4 Opin. 218). Stanbery.

When the Senate has concurred and the "commission" is signed effect of the by the President, even before delivery, the appointment is complete, and the officer has vested legal rights which cannot be resumed. Marbury v. Madison, 1 Cr. 156; United States v. Le Baron, 19 How. 74; Story's Const. § 1548-1554. Mr. Jefferson refused to act upon this decision, and claimed the power to withhold the commission. 4 Jeff. Corr. 75, 317, 372; Rawle ou the Const. 166; Story's Const. § 1553, note 1.

To "appoint," and to "commission," are not one and the same thing. Marbury v. Madison, 1 Cr. 155. The commission is not necessarily the appointment, although conclusive evidence of the fact. Id.; United States v. Le Baron, 19 How. 74.

When the appointee refuses to accept, the successor is nominated in his place, and not in the place of the person who had been pre

viously in the office and had created a vacancy. (Marbury v. Madison, 1 Cr. 137-156.) Story's Const. § 1551. See also Johnson v. United States, 5 Mason, 425, 438, 439; United States v. Kirkpatrick, 4 Wheat. 733, 734; Bowerbank v. Morris, Wallace Cir. R. 425, 438, 439; Thompson's Case, 3 P. Will. 194; Boucher v. Wiseman, Cro. Eliz. 440; Burch v. Maypowder, 1 Vt. 400.

dor?

180. "AMBASSADORS, OTHER PUBLIC MINISTERS, AND CONSULS." What is an "AMBASSADORS," comprehend the highest grade only of public Ambassa ministers. Story's Const. § 1525. See Grotius, Vattel, Martens, Wicquefort, Halleck (ch. 9, pp. 200-239) and Wheaton, Title, 202. AMBASSADORS. For a better definition, see note 202.

Ambassadors could not include consuls, hence the enlargement of the enumeration. Story's Const. § 1525; Federalist, No. 42. See ante, p. 14, Art. IX.

189.

181. "PUBLIC MINISTERS AND CONSULS."-CONSULS.-For the derivation of the word consul (consulere, consulatus, comes, comi- Define contatus), see Co. Litt. lib. 3, note 20; Burrill's Law Dic., CONSUL. suls? The name of a chief magistrate among the Romans, and of Earls, from consulendo, among the Britons. Bract. fol. 5, b.; 1 Bl. Com. 227. For the origin, history, and duty of consuls, see Halleck's International Law, ch. 15, 239-269, and the many learned authorities there cited.

In commercial and international law, a public agent, appointed by a government to reside in a foreign country (and usually in seaports), to watch over its own commercial rights and privileges, and the commercial interests of its citizens or subjects. 1 Kent's Com. 41.

182. "JUDGES OF THE SUPREME COURT, AND ALL OTHER What offiOFFICERS OF THE UNITED STATES, WHOSE APPOINTMENTS ARE cers can NOT HEREIN OTHERWISE PROVIDED FOR, AND WHICH SHALL BE dent ESTABLISHED BY LAW."

Judges of the Supreme Court are defined in the Constitution. (Art. III. sec. 1.)

The effect of this and other clauses of the Constitution, on the subject of the appointments to office, is to declare that all offices under the federal government, except in cases where the Constitution itself may otherwise provide, shall be established by law. United States v. Maurice, 2 Brock. 96.

Every thing concerning the administration of justice, or the general interests of society may be supposed to be within the meaning of the Constitution, especially if fees and emoluments are annexed to the office. But there are matters of temporary and local concern, which, although comprehended in the term officers, have not been thought to be embraced by the Constitution. (Lehman v. Sutherland, 3 Serg. Rawle, 149.) Attorney-General Stanbery's Opinion on the Reconstruction Laws, 24th May, 1867, p. 12.

the Presi

appoint? 179.

Where else

183. "BUT THE CONGRESS MAY VEST BY LAW THE APPOINT- may the MENT, ETC., OF INFERIOR OFFICERS IN THE PRESIDENT ALONE, IN appointing power be THE COURTS OF LAW, OR IN THE HEADS OF DEPARTMENTS."-Here vested?

179-182.

Officers commissioned?

Tenure of
office?

Can the
President

remove as
well as
appoint?
179, 180.

To what is

action con

the duty of commissioning is distinct from the appointment. The legislature might require commissions. Marbury v. Madison, 1 Cr. 157; Story's Const. § 1548.

Clerk's of courts are such officers; and, in such cases, the power of removal is incident to the power of appointment. Ex parte Hennen, 13 Pet. 230, 259. And may be exercised by the court which appointed. Id.

&c.

The President cannot appoint a commissioner of bail, affidavits,
That power belongs to the circuit courts. Bates, 24th June,

1861.

184. THE POWER OF REMOVAL. The power of the President to appoint to office, necessarily includes the power to remove all officers appointed and commissioned by him, where the Constitution has not otherwise provided. Therefore he may remove a territorial judge, in his discretion. 5 Opin. 288; 3 Id. 673; 4 Id. 603, 608–9; 4 Elliot's Debates, 350; Ex parte Hennen, 13 Pet. 259. And he may cause a military officer to be stricken from the rolls, without a trial by court-martial, notwithstanding a decision in his favor by a court of inquiry. 4 Opin. 1.; 2 Story's Const. § 1538; Stanbery, 17-19. But see act of 13th July, 1866, in this note; Story's Const. § 1549-1554.

The Senate cannot originate an appointment; its constitutional the Senate's action is confined to a simple affirmation or rejection of the President's nominations; and such nominations fail whenever it disagrees to them. 3 Opin. 188; Stanbery, 18.

fined. 193, 194.

185.

Art. III.,
Sec. 1.

184.

This clause gives him power to appoint diplomatic agents of any rank, at any place, and at any time, in his discretion, subject to the approbation of the Senate; and this power cannot be limited by act of Congress. 7 Opin. 186.

Nothing is said about the power of removal by the executive of any officers whomsoever. As, however, the tenure of office of no officers except those in the judicial department, is, by the Constitution, provided to be during good behavior, it follows, by irresistible inference, that all others must hold their offices during pleasure, unless Congress shall have given some other duration to their office. (1 Lloyd's Debates, 511, 512.) Story's Const. § 1537; Keenan v. Perry, 24 Tex. 258. In the absence of a constitutional or statutory provision, the power of removal would seem to be incident to the power of appointment. (Ex parte Hennen, 13 Pet. 259.) Keenan v. Perry, 24 Tex. 258.

As far as Congress constitutionally possesses the power to regulate and delegate the appointment of "inferior officers," so far they may prescribe the term of office, the manner in which, and the persons by whom, the removal, as well as the appointment to office, shall be made. (Marbury v. Madison, 1 Cranch, 137, 155.) Story's Const. § 1537. See Monroe's Message of 12th April, 1822, 1 Executive Journal, 286; Sergt's Const. ch. 29 [31]; 5 Marshall's Life of Washington, ch. 3, p. 196-200; 1 Lloyd's Debates, 351–366, and 450-600; Id. 1-12.

The removal takes place in virtue of the new appointment, by mere operation of law. Ex parte Hennen, 13 Pet. 300; Federalist, No. 77.

"The consent of the Senate would be necessary to displace as well as to appoint." (Federalist, No. 77.) Story's Const. § 1540. While Mr. Madison claimed the power to remove, he said, "the wanton removal of meritorious officers would subject him (the 191-194. President) to impeachment." (1 Lloyd's Debates, 503; and see Id. 351, 366, 450, 480-600; 4 Elliot's Debates, 141-207.

moved?

The first limitation on the President's power of removal is as How are the follows: "And no officer in the military or naval service shall, in military retime of peace, be dismissed from service except upon, and in pursuance of, the sentence of a court-martial to that effect, or in commutation thereof." Act of 13th July, 1866, 14 St. p. 92, § 5.

In the differences between the President and Congress, the question was again discussed by the thirty-ninth Congress; and although not very elaborately argued, the positions taken for and against the power were urged, and will be found in the Congressional Globe of that session, and in the President's veto of the following law :

Act of
March 2,

officers?

An Act regulating the Tenure of certain Civil Offices. "SEC. 1. Every person holding any civil office to which he has 1867, 14 St. been appointed by and with the advice and consent of the Senate, 430. and every person who shall hereafter be appointed to any such What is office, and shall become duly qualified to act therein, is, and shall be tenure of entitled to hold such office until a successor shall have been in like civil manner appointed and duly qualified, except as herein otherwise With what provided: Provided, That the Secretaries of State, of the Treasury, exceptions? of War, of the Navy, and of the Interior, the Postmaster-General, and the Attorney-General, shall hold their offices respectively for and during the term of the President, by whom they may have been appointed, and for one month thereafter, subject to removal by and with the advice and consent of the Senate.

"2. When any officer appointed as aforesaid, excepting judges When may of the United States Courts, shall, during a recess of the Senate, be the President susshown, by evidence satisfactory to the President, to be guilty of pend and misconduct in office, or crime, or for any reason shall become in- temporarily capable or legally disqualified to perform its duties, in such case, appoint? and in no other, the President may suspend such officer and designate some suitable person to perform temporarily the duties of such office until the next meeting of the Senate, and until the case shall be acted upon by the Senate, and such person so designated shall take the oaths and give the bonds required by law to be taken and given by the person duly appointed to fill such office; and in such case it shall be the duty of the President, within twenty days after the first day of such next meeting of the Senate, To whom to to report to the Senate such suspension, with the evidence and report? reasons for his action in the case, and the name of the person so designated to perform the duties of such office. And if the Senate shall concur in such suspension, and advise and consent to the removal of such officer, they shall so certify to the President, who may thereupon remove such officer, and, by and with the advice and consent of the Senate, appoint another person to such If the office. But if the Senate shall refuse to concur in such suspension, refuse to such officer so suspended shall forthwith resume the functions of concur?

Senate